subjects attached to the data, and there is no reason why this same ethical sense of the confidentiality, or the privacy, of the data cannot be extended to other forms of publication. Thus, it should be part of the responsibility of the research scientist not to make his research data, in which individuals are identifiable, available to others, whether such others be personnel directors, private detectives, police officers, journalists, government agents, or even other scientists.

Assuredly, one can visualize situations in which the release of research data for a use not initially contemplated would, because of the great public interest involved, be socially tolerable. But, just as certainly, it is possible to visualize situations in which it clearly would not. In the latter category, for example, obviously falls the sale of personal information to commercial organizations for subscription or mailing lists.

In determining the proper limits to be placed on the availability of research data, a workable proposition may well be to confine such data to the particular research purpose for which permission was initially obtained, or to a reasonably equivalent purpose. At the least, such a proposition might be accepted as an operative rule in the absence of persuasive considerations to the contrary. Of course, it must be recognized that as an individual may consent to an initial privacy invasion, so may he waive a limitation of that consent to the original research purpose. Care must, however, be taken in such instances not to imply a waiver in situations where it may not have been intended.

As in other affairs, there is, unquestionably, a happy mean between excessive privacy and indecent exposure in behavioral research. One way to begin to establish such a mean is for the behavioral scientists themselves to demonstrate, by codes of ethics and research standards, their own acute sensitivity and concern for the problem. Psychologists have made a start on an enforceable code of ethical standards directed primarily to the client relationship.64 Other disciplines can learn from their example and all can extend such codes more broadly to behavioral research.

VIII. AN ETHICAL CODE

From the foregoing there emerges an outline of the contest between the values of privacy and those of behavioral research. The community is sensitive to both values. Our society will support, and indeed, will insist on, a decent accommodation between them. An accommodation which takes into account the ethical and legal obligations of the investigating scientist can be achieved without diminishing the effectiveness of the scientific inquiry. Scientists who are responsive to the claim of privacy will find themselves pressed to develop

64. See Ethical Standards of Psychologists, 18 AMERICAN PSYCHOLOGIST 56 (1963).

better and more rational research techniques. Their innate inventiveness can be expected to yield new and better research methods.

Not only will the behavioral scientists be inventive in accommodating the competing values of privacy and research, but in doing so they will be more sensitive to the complexities and nuances involved than either courts or legislatures. To be sure, however, judges and legislators do have a supportive role and can be expected to fill it either by correcting abuses or protecting the responsible investigator who operates in accordance with the ethical consensus of the community.

65

The supportive measures available to the law, several of which have already been mentioned, are numerous and varied. One is the extension of a privileged status to the confidential communication of private information to a behavioral scientist. Another is the provision of civil or criminal remedies for the breach of the right of privacy. A third is to assess and define the contexts in which, or the conditions under which, the cost in privacy is either marginal or de minimis, or permissible, because outweighed by the positive gains perceived for society in particular research. A fourth measure is to preclude public officials or employees from disclosing confidential information acquired in the course of employment.66 A fifth approach is to develop "disciplinary proceedings" to enforce the claim to privacy against

65. Remedies for the breach of this right are already available in many states: (a) See the list of states which recognize a common-law right of privacy in Prosser, supra note 14, at 386-89.

(b) Oregon and Maryland have statutes which make eavesdropping, without the consent of all persons being overheard, a crime. Neither accords any exemption for behavioral research. Thus, in Oregon, it is unlawful to obtain any part of a conversation by an eavesdropping device "if all participants in the conversation are not specifically informed that their conversation is being obtained." ORE. REV. STAT. § 165.540 (1) (c) (1963). Violation of this Oregon statute is punishable by fine or imprisonment and renders the violator liable for damages in a civil suit. ORE. REV. STAT. §§ 30.780, 165.540(6) (1963). In Maryland it is unlawful to use any device "to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent, expressed or implied, of that other person." MD. ANN. CODE art. 27, § 125A (a) (Supp. 1964).

(c) See the statutes in five other states which make eavesdropping unlawful without the consent of a party to the conversation-again without an exemption for scientific research: CAL. PEN. CODE § 653j; ILL. ANN. STAT. ch. 38, §§ 14-2, 14-4 (Smith-Hurd 1964); Mass. Gen. Laws Ann. ch. 272, § 99 (Supp. 1964); Nev. Rev. Stat. § 200.650 (1957); N.Y. PEN. LAW § 738.

(d) See also the comparable but more limited statutes in six other states: Ark. STAT. ANN. § 41-1426 (1964) (loitering for purposes of invading privacy); GA. CODE ANN. § 26-2001 (1953) (peeping or similar acts tending to invade privacy); N.D. CENT. CODE 12-42-05 (Supp. 1965) (using any mechanical or electronic device to overhear or record and to repeat with intent to vex or injure); OKLA. STAT. tit. 21, § 1202 (1941) (loitering with intent to overhear and repeat to vex or injure); S.C. CODE ANN. § 16-554 (1962) (peeping or similar acts tending to invade privacy); S.D. CODE, § 13.1425 (1939) (loitering with intent to overhear and repeat to vex or injure).

(e) See RESTATEMENT (SECOND), TORTS § 286 (1965), which reflects the judicial

acceptance of such statutory standards as a basis for civil liability.

66. See, e.g., Antitrust Civil Process Act § 4(c), 76 Stat. 550 (1962), 15 U.S.C. § 1313(c) (1964); N.Y. EDUC. LAW § 1007; N.Y. LAB. LAW § 537; N.Y. PEN. LAW § 762; N.Y. PUB. OFFICERS LAW § 74(b).

public officials in some form of mandamus or contempt,67 and against private professional persons through disbarment or loss of license. Still another possible supportive legal measure is to require registration for the possession of all privacy-invading devices.68 The alternatives are clearly varied. It should be noted, however, that the existing legislative attempts to prohibit eavesdropping by use of devices have been uniformly defective. The current statutes are either inadequate in scope or indiscriminate in application, or both.

A precondition for the development of a proper balance between the values of privacy and those of behavioral research is the growth, among behavioral scientists themselves, of a heightened sense of their own confidential professional relationship with their informants. One of the best ways of articulating and developing this heightened sense of the confidential professional relationship is through the development and observance of codes of ethics in which the claim to privacy is recognized.

Codes of ethics for the several disciplines of scholarship and research are sound and sensible, and such codes should be general rather than specific, simple rather than complex. A workable code of ethics should be subject to expansion, interpretation, and application in specific cases according to the distinctive character of the research situation.

In accord with this view, seven principles are suggested for inclusion in a general code of ethics for behavioral research:

One: There should be a recognition, and an affirmation, of the claim to private personality.

Two: There should be a positive commitment to respect private personality in the conduct of research.

Three: To the fullest extent possible, without prejudicing the validity of the research, the informed, and voluntary, consent of the respondents should be obtained.

Four: If consent is impossible without invalidating the research, then before the research is undertaken, the responsible officials of the institutions financing, administering and sponsoring the research should be satisfied that the social good in the proposed research outweighs the social value of the claim to privacy under the specific conditions of the proposed invasion. These officials in turn are responsible, and must be responsive, to the views of the larger community in which science and research must work.

Five: The identification of the individual respondent should be divorced as fully and as effectively as possible from the data furnished. Anonymity of the respondent to a behavioral research study,

67. The Swedish Ombudsman suggests another interesting possibility. See A State Statute to Create the Office of Ombudsman, 2 HARV. J. LEGIS. 213 (1965).

68. Maryland, by House Bill 1197, approved by the Governor on April 8, 1965, added a new ¶ 125D to Article 27 of its Annotated Code and thereby became the first state to require "every person possessing any eavesdropping and/or wiretapping device" to register such device with the State Police. Unless registered it is unlawful to manufacture or possess any such device. It will be interesting to see how vigorously and effectively this new statute is enforced. Will it be applied, for example, as it would seem was intended, to the manufacturers of tape recorders or dictaphones? Or to the lawyers or scientists who use them?

so far as possible, should be sought actively in the design and execution of the study as a fundamental characteristic of good research.

Six: The research data should be safeguarded in every feasible and reasonable way, and the identification of individual respondents with any portion of the data should be destroyed as soon as possible, consistent with the research objectives.

Seven: The research data obtained for one purpose should not thereafter be used for another without the consent of the individual involved or a clear and responsible assessment that the public interest in the newly proposed use of the data transcends any inherent privacy transgression.

Neither these seven suggested principles, nor any other set, will resolve, nor should be expected to resolve, the productive tension between the needs and advancement of science and the vibrant diversity of human personality. If it is correct, however, that there has been a growing imbalance in the relation of science and research to the values of privacy, then either the dignity, diversity and strength of the individual in our free democratic society will be diminished, or society will correct the balance. If the balance is to be corrected as it will and must be the lead should be taken by the scientific community through its own codes, its own attitudes, and its own behavior.

[From The Houston Post, June 13, 1965]

PRIVACY INVASION BRINGING UNITED STATES TO BRINK OF ORWELLIAN NIGHTMARE

There is at least one good test of any nation's freedom.

How strongly protected are its citizens' rights to personal privacy?

The question is complex, and leads, as do most good questions, to further questioning.

Can a man privately hold unpopular views without being investigated by one agency or another?

Can a man seek employment for himself without fear that his personal life will be subjected to a harrowing investigation?

Can a man step outside his house or use a telephone without fear that a listening device is taking down his every word?

Can a man be safe from snoopers who-if even for good, just, and impersonal reasons-want to know things about him?

Put it this way:

Is a man entitled in this time and in this place to keep his life to himself? Privacy is no luxury graciously doled out by a generous government. It is a right that must be zealously protected.

The sad fact is, though, that our right to privacy is being subjected to a serious erosion.

The advance of technology is mostly to blame.

It is now a matter of ridiculous ease to intrude electronically into another's life. If you have the money and the inclination, you can easily buy a snooping device.

You can tap a telephone conversation, or you can listen in on what your neighbor is saying to his wife over there on the patio.

It is all so easy that outlawing snooping devices has become almost impossible. You can make them out of harmless components if that is what you want to do. There are subtler dangers ahead.

Representative Cornelius Gallagher, Democrat, of New Jersey, whose House subcommittee has held public hearings into snooping, makes this cogent point: "Advancements in electronics have given new weapons to snoopers of all kinds who feel they must have an intimate look at the innermost secrets of our people. "Their motivations vary and may even be good, but dark dangers lurk in their conviction that they somehow have the absolute right to know these things. "Now the magic of computers is helping them gather such a wealth of information from such a variety of sources that all of us may someday stand psychologically naked."

Such an incident popped up in the news last weekend.

It turns out that the Peace Corps has a personality test in which a number of questions require a true or false answer. A congressional committee wants to know the significance of a true or a false answer to such questions as:

"I think Lincoln was greater than Washington.

"I like to praise someone I admire.

"I like to be regarded as physically attractive by those of the opposite sex.

"I like to talk about my achievements.

"I like to listen to or tell jokes in which sex plays a major part."

A Peace Corps witness told the committee that there were no right or wrong answers but each question was part of the whole.

And yet, when the man who originally instituted the tests was asked to answer some of the questions, he replied:

"Now you are invading my privacy."

The whole idea has some amusing aspects when it concerns such exotic devices as a martini with a microphone embedded in the olive, but it is considerably more sinister when people are subjected to lie detector tests to probe their innermost secrets.

It is also questionable when a farm census questionnaire asks farmers to detail their outside income, including the amounts they receive from Social Security, the Veterans' Administration, dividends and interest, and other sources of income.

The Government does indeed need the power to inquire into cases that involve subversion, the national security, or crime, but this should be considered no invitation to snooping of the most casual kind.

Some way-perhaps a constitutional amendment-must be found to build a wall between the snoopers-whether governmental or private and the citizen of the United States. And it is a matter of considerable urgency.

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